Citation Nr: 0000548
Decision Date: 01/07/00 Archive Date: 01/11/00
DOCKET NO. 98-13 275 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Huntington, West Virginia
THE ISSUES
1. Entitlement to service connection for a claimed disorder
manifested by diarrhea.
2. Entitlement to service connection for a claimed skin
rash.
ATTORNEY FOR THE BOARD
Joseph W. Spires, Associate Counsel
INTRODUCTION
The veteran served on active duty from February 1965 to
October 1970.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a May 1998 rating decision of the RO.
REMAND
In the veteran's June 1998 notice of disagreement, he
informed the RO that he had been scheduled for an August 3,
1998 medical examination for his claimed diarrhea and skin
rash at the VA Medical Center (MC) in Clarksburg, West
Virginia. Although the veteran indicated in his February
1998 claim for VA benefits that he had received treatment for
both disabilities from the Clarksburg, West Virginia VAMC
since 1987, the RO only requested treatment records since
January 1996. A February 1996 progress note indicated that
the veteran had previously been treated in November 1995.
Furthermore, a March 1998 response to a request from the RO
for private treatment records indicated that Doctor Hartman
and Doctor Huffman had not treated the veteran since 1988 but
that they had sent their records to VA on November 13, 1995.
Therefore, as the record indicates that all relevant VA
medical records have not been associated with the claims
folder, the Board finds that the veteran's claims must be
remanded for further development. VA medical records
concerning treatment prior to a Board decision are
constructively deemed to be before the Board. See Dunn v.
West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet.
App. 611 (1992).
In claims that are not well grounded, VA does not have a
statutory duty to assist the veteran in developing facts
pertinent to his claim. VA is, however, obligated under
38 U.S.C.A. § 5103(a) to advise an applicant of evidence
needed to complete his application. This obligation depends
upon the particular facts of the case and the extent to which
the Secretary of the Department of Veterans Affairs has
advised the applicant of the evidence necessary to be
submitted with a VA benefits claim. Robinette v. Brown, 8
Vet. App. 69 (1995).
Thus, the veteran is advised that he must submit medical
evidence to establish a nexus between an in-service injury or
disease and the current disabilities claimed. Epps v. Gober,
126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet.
App. 498, 506 (1995).
Additionally, the Board observes that the veteran's service
medical records indicate some in-service treatment for
diarrhea and a skin rash. The record also contains more
recent diagnoses of skin disability, including tinea cruris
and anal fistula, as well as diagnoses of gastrointestinal
disability, including that of a spastic bowel and lactose
intolerance. Therefore, as the veteran contends that he has
had these symptoms since service, he is advised that he must,
alternatively, submit medical evidence to establish a nexus
between his claimed postservice continuity of symptomatology
and those symptoms that he alleges have continued since
service. See Savage v. Gober, 10 Vet. App. 488, 495-497
(1997); 38 C.F.R. § 3.303(b) (1999).
In light of the foregoing, the Board is REMANDING this case
for the following action:
1. The RO should take obtain copies of
all pertinent VA treatment records, to
include records of treatment prior to
January 1996 as well as more recent
medical records from the VAMC in
Clarksburg, West Virginia, which have not
been previously secured. In addition,
all indicated private treatment records
should be obtained.
2. The RO should also take appropriate
steps to instruct the veteran that he
should submit all medical evidence which
tends to support his assertions that he
has a disability manifested by diarrhea
and a skin disability due to in-service
disease or injury.
3. After completion of the development
requested hereinabove, the RO should
review the veteran's claims in light of
any additional evidence. If the issues
remain denied, the veteran should be
furnished with a Supplemental Statement
of the Case and be given an opportunity
to respond thereto.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate.
The veteran need take no further action until he is otherwise
notified, but he may furnish additional evidence and argument
while the case is in remand status. Quarles v. Derwinski,
3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109
(1995); Kutscherousky v. West, 12 Vet. App. 369 (1999).
In taking this action, the Board implies no conclusion as to
any ultimate outcome warranted.
These claims must be afforded expeditious treatment by the
RO. The law requires that all claims that are remanded by
the Board of Veterans' Appeals or by the United States Court
of Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
STEPHEN L. WILKINS
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1999).